Minister for Justice, Equality and Law Reform v Fustiac

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 06 April 2011
• Neutral Citation: [2011] IEHC 134
• Court: High Court
• Date: 06 April 2011

[2011] IEHC 134

THE HIGH COURT

Record No 72/EXT/2011

Minister For Justice v Fustiac

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 (AS AMENDED), AND IN THE MATTER OF AN APPLICATION FOR BAIL

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

- AND -

TIBERIUS FUSTIAC

RESPONDENT

EUROPEAN ARREST WARRANT ACT S13

FRAMEWORK DECISION ART 2 PAR 2

EUROPEAN ARREST WARRANT ACT S38(1)(B)

EUROPEAN ARREST WARRANT ACT S16

CRIMINAL LAW (HUMAN TRAFFICKING) ACT 2008 S4

CRIMINAL LAW (HUMAN TRAFFICKING) ACT 2008 S3

MIN FOR JUSTICE & ORS v ZIELINSKI UNREP EDWARDS 10.02.2011 2011 IEHC 45

ATTORNEY GENERAL v O'CALLAGHAN 1996 IR 501

MIN FOR JUSTICE & ORS v OSTROVSKIJ UNREP PEART 20.12.2005 2005/38/7883 2005 IEHC 427

ATTORNEY GENERAL v GILLILAND 1985 1 IR 643

MIN FOR JUSTICE & ORS v JIRI VOJIK UNREP PEART 28.02.2007 (EX TEMPORE)

FRAMEWORK DECISION ART 12

BAIL ACT 1997 S2

BAIL ACT 1997 S1

EXTRADITION

European arrest warrant

Bail - Surrender for trial - Jurisdiction of High Court to grant bail - Principles to be applied - Appropriate deponent in affidavit grounding application for bail - Whether O'Callaghan principles applied - Whether presumption in favour of granting bail rebutted - Minister for Justice, Equality and Law Reform v Zielinski [2011] IEHC 45, (Unrep, Edwards J, 10/2/2011); Minister for Justice, Equality and Law Reform v Jiri Vojik (Ex tempore, Peart J, 28/2/2007) approved - The People (Attorney General) v O'Callaghan [1966] IR 501; The People (A.G.) v Gilliland [1985] IR 643 applied - Minister for Justice, Equality and Law Reform v Ostrovskij [2005] IEHC 427, (Unrep, Peart J, 20/12/2005) distinguished - Bail Act 1997 (No 16), ss 1 and 2 - Child Trafficking and Pornography Act 1998 (No 22), s 3 - European Arrest Warrant Act 2003 (No 45), ss 13, 16 and 38, - Criminal Law (Human Trafficking) Act 2008 (No 8), ss 3 and 4 - Extradition Acts 1965 to 2001 - Council Framework Decision of 13/6/2002, art 12 - Bail granted (2011/72EXT - Edwards J - 6/4/2011) [2011] IEHC 134

Minister for Justice, Equality and Law Reform v Fustiac

Facts: The respondent was a Romanian national and the subject of a European arrest warrant issued by the State of Romania in 2010. He sought to be admitted to bail. He faced charges of trafficking in human beings. The Court took the view that the offences satisfied correspondence under Irish law. Gardai sought to object to bail on the basis that he would evade justice. The question arose as to whether he was entitled to benefit from a presumption in favour of granting bail and whether the principles set out in the judgment of the Court in The People (Attorney General) v. O' Callaghan [1966] IR 501 applied to bail applications in rendition proceedings pursuant to the European arrest warrant Act 2003, as amended.

Held by Edwards J. that the Court was satisfied that in the circumstances of the present case that the effective presumption in favour of bail had not been rebutted and that the Court was disposed to admit the respondent to bail, subject to conditions. He was the subject of allegations alone and not any criminal charges. He had been residing in Ireland for nearly ten years. He had lived openly in the jurisdiction and put himself at the notice of the Gardai.

Reporter: E.F.

1 JUDGMENT of Mr Justice Edwards delivered on the 6th day of April, 2011.

Introduction

2 The respondent is a Romanian national and he is the subject of an European Arrest Warrant issued by the state of Romania on the 5 ^th of February 2010. That warrant was received in this jurisdiction on the 6 ^th of January 2011 and was endorsed for execution by the High Court on the 16 ^th of February 2011. The respondent was duly arrested on foot of this warrant on the 21st of March 2011 and was then brought before the High Court in accordance with s.13 of the European Arrest Warrant Act, 2003 (as amended) (hereinafter "the 2003 Act") whereupon the Court, having fixed a date for the purposes of s.16 of the 2003 Act, remanded him in custody to Cloverhill Prison pending the s.16 hearing in the matter. On the same occasion the respondent sought, and was granted, leave to serve short notice upon the applicant of his intention to apply on the 23 ^rd of March 2011 to be admitted to bail. A bail application was then duly served and came on for hearing on the 23 ^rd of March 2011. The applicant objected to bail being granted on the grounds that it was feared that the respondent would seek to evade justice by flight and that he would not turn up for his s.16 hearing. The Court was ultimately persuaded to admit the respondent to bail subject to conditions, and did so, but indicated that as the case had raised an important issue of law which required clarification it would give its reasons later in a reserved judgment. I now give those reasons.

The nature of the European Arrest Warrant in this case

3 The European Arrest Warrant in question is a prosecution warrant on foot of which the respondent is sought for the purpose of trial in respect of two alleged offences in respect of which paragraph 2 of article 2 of the Framework Decision is invoked by the ticking of the box relating to "trafficking in human beings" in part E (I) of the warrant. The alleged offences in question are, according to information provided in part C of the warrant, each punishable by imprisonment for a maximum period of not less than 3 years under the law of the issuing state. The alleged offence of trafficking in human beings carries a penalty of between 5 and 15 years imprisonment in the issuing state, while the alleged offence of trafficking in minors carries a penalty of between 7 and 18 years imprisonment in the issuing state. Accordingly, and by virtue of the application of s. 38(1)(b), this is prima facie (subject to hearing and considering any arguments to the contrary at the s.16 hearing in due course) a case in which correspondence does not require to be demonstrated. However, it is further the Court's provisional view (again, subject to hearing and considering any arguments to the contrary at the s.16 hearing in due course) that in any event the first of the two alleged offences in question (trafficking in human beings) would correspond with a offence under s.4 of the Criminal Law (Human Trafficking) Act, 2008, while the second of those two alleged offences (trafficking in minors) would correspond with a offence under s.3 of the Criminal Law (Human Trafficking) Act, 2008 and possibly also with an offence under s. 3 of the Child Trafficking and Pornography Act 1998 (as amended). These are all serious offences in Irish law carrying potential penalties of up to imprisonment for life upon conviction on indictment.

The affidavit grounding the application

4 The principle grounding affidavit was sworn herein on the 22 ^nd of March 2011 by the applicant's solicitor, a Ms Niamh Moriarty, who deposes that she is the principal in the firm of Niamh Moriarty & Co, Solicitors, of Parnell Road, Enniscorthy, Co Wexford. I have previously remarked in Minister for Justice, Equality & Law Reform v Zielinski [2011] IEHC 45 that strictly speaking the affidavit should have been sworn by the respondent (i.e. the applicant for bail) personally. On this occasion, the court will overlook the irregularity, and the hearsay nature of the evidence, as it did in Zielinski, having regard to the fact that English is not the respondent's first language, and the respondent was in custody, and it may therefore have been logistically easier for the solicitor to swear the affidavit based on instructions received. However, the Court would like the message to go out for the benefit of future bail applicants that the affidavit grounding an application for bail in the European Arrest Warrant context should, save in exceptional circumstances, be sworn personally by the person applying for bail, not least so that he/she can be cross-examined on it should cross-examination be deemed necessary or desirable by the (executing) State's legal representatives.

5 Ms Moriarty deposed, inter alia, to the fact that her client is entitled to the presumption of innocence in respect of the alleged offences, the subject matter of the warrant. She further stated that he does not consent to his rendition to Romania on foot of the said European Arrest Warrant and that he intends to contest the pending application to surrender him. She stated that he has not previously applied for bail in these proceedings.

6 Ms Moriarty further deposed to the fact that the respondent is unemployed and resides at Apartment 5, Abbey Centre, Enniscorthy, Co Wexford, and she stated that that is the address at which he was intending to reside if granted bail.

7 Ms Moriarty has further deposed to the fact that the respondent has been living in Ireland for the past 9½ years since the 13th of September 2001, when he came to Ireland with his partner Maria and their son Armin. She states that the respondent is of Roma ethnic origin and that on the 13th of October 2004 he was granted refugee status in Ireland. He alleges that he was persecuted in the past by the police in Romania on account of his ethnicity, and the Court infers, although it is not expressly stated, that he was granted asylum by virtue of having established that owing to a well founded fear of being persecuted for reasons of race, or perhaps membership of a particular social group, or both, he is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of his country of nationality.

8 Ms Moriarty further deposed that the respondent has many ties to this State and to County Wexford and he has resided in County Wexford since September 2001 and at the address previously mentioned for over two years. He resides there with his...